Premack: Separate property inheritance can be converted to community property

By Paul Premack :
March 5, 2012

Dear Mr. Premack: I have inherited a small house from my mother. The lawyer told me that an inheritance is separate property. I want this house to be co-owned with my wife, and I want it to be our community property. Our son is living in my mother’s house right now. If I were to die, I want the house to be owned by my wife. Is there a way to accomplish my goals? – Q.S.

Your mother’s attorney was correct when you were told that inherited property is separate property. If your mother’s Will devised the house to you alone, then it is part of your sole and separate estate. There are some advantages and some disadvantages to holding it as separate property.

Advantages emerge from the fact that the house is your asset. If you need to sell it, you can do so along without anyone else being involved. You receive all the net proceeds of the sale, and you control the proceeds. If you decide to keep the house and (after your son moves) decide to rent it out, the net rental income is under your sole control. Disadvantages emerge as well. What if you become disabled? No one has the legal right to manage or sell the property except you. What if you die? The property can pass to whomever you select, but must do so via your Last Will and Testament, and will necessarily require probate.

Your goal is to convert the house to jointly-owned community property. Such an act has only been legal in Texas since the Constitution was amended in 2001. Once the voters made conversion legal, the Texas Family Code was also amended to specify just how to accomplish the conversion. There is a right way and a wrong way defined by law. You do NOT want to simply sign a deed that gifts one-half of the property to your wife. If you do so, she will have received that half as her separate property.

Instead, you need to follow the procedure set out in section 4.202 of the Family Code. You and your wife must both sign a written agreement that identifies the property with its legal description. The Agreement must state that the real property is being converted to become community property. You must each acknowledge that you are entering into the agreement voluntarily. You must each acknowledge that you both received a “fair and reasonable disclosure” of the legal effect of the community property conversion.

If you don’t meet those legal standards, there is no conversion. How could you prove, in the future, that you received a “fair and reasonable disclosure”? The law actually recites a disclosure that, if included in writing in the agreement, creates a legal presumption that you became aware of the agreement’s legal effect before signing it. Included in that statement are these warnings:

• “If you sign this agreement, all or part of the separate property being converted to community property may become subject to the liabilities of your spouse.” In other words, while the house remains your separate property it is protected from your spouse’s debts, but when it is community is exposed to those debts.

• “If you sign this agreement… you will lose your management rights over the property.” You and your wife will jointly manage the house. If want to sell it, she must agree. If you want to lease it, she must agree. And you better trust each other enough to update your Wills and to name each other as Agents in Durable Powers of Attorney in case either of you should become disabled.

• "If you sign this agreement and your marriage is subsequently terminated by the death of either spouse or by divorce … the separate property being converted to community property may become the sole property of your spouse or your spouse's heirs." In your case, you actually desire that outcome, so it is not a negative; for others, it may be an undesirable outcome.

Once the house has been converted into community property, you can also create a right of survivorship between you and your wife. If so, ownership will pass to your wife when you die, without the need for probate. An experienced Elder Law attorney should consulted for the best result.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio. View the archive of his past San Antonio Express-News legal columns (1989 forward) or address Estate Planning, Probate and Elder Law questions to him by clicking “submit a question” at www.premack.com.